Gauhati High Court
Kunja Mohan Saikia vs Smti Rumi Saikia And Anr on 21 May, 2019
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/4
GAHC010020462017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RFA 51/2017
1:KUNJA MOHAN SAIKIA
S/O NABIN SAIKIA, R/O VILLAGE- KAMPUR GOWALA GOAN, MOUZA
KAMPUR, P.S. KAMPUR, DIST. NAGAON, ASSAM
VERSUS
1:SMTI RUMI SAIKIA and ANR
W/O LATE D.R. BORA, C/O PRAFULLA BORA, R/O VILLAGE PAMILA
MIKOLONG GAON, MOUZA-JARABARI, P.S. KACHUA, DIST. NAGAON,
ASSAM, PIN-782001
2:SRI DIPANKAR NATH
S/O NRIPEN NATH
R/O VILLAGE-MOHGORIA ATIGAON
MOUZA-KAMPUR
P.S. KAMPUR
DIST.NAGAON
ASSAM
PIN-78200
Advocate for the Petitioner : MS.U GOGOI
Advocate for the Respondent : MR.P K DAS
Page No.# 2/4
BEFORE
HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA
ORDER
21-05-2019 Heard Mr. M.J. Barua, the learned counsel for the appellant and Mr. P.K. Das, the learned counsel representing both the respondents.
The present appellant is the husband of the respondent No. 1. Their marriage was solemnized on 05.03.1981 as per Hindu Custom. The appellant was a school teacher by profession at the time of marriage with the respondent no. 1. Out of their wedlock a male child was born and the son has grown up and in the year 2007, the said son was also married and presently the son and the daughter-in-law are residing with the appellant. The ground for their divorce centered around an extra marital affair of the respondent No. 1 with the respondent No. 2. The respondent No. 1 filed her written statement denying the alleged extra marital affair with the respondent No. 2. Refuting various allegations made in the claim the respondent No. 1 sought for dismissal of the divorce proceeding which was numbered T.S. (D) No. 66/2007 in the Court of learned District Judge at Nagaon. On the basis of the pleadings of the parties, the learned Court below framed various issues as follows:
(I) Whether the suit is maintainable?
(II) Whether the O.P. Committed adultery and ran away from her house with O.P. No. 2
Dipankar Nath?
(III) Whether the plaintiff-petitioner tortured the O.P. No. 1?
(IV) Whether the petitioner/ plaintiff is entitled to a decree of divorce as prayed for?
(V) To what relief the parties are entitled to?
Additional Issue:
1. Whether the defendant No. 1 Smti. Runu Saikia was arrested on 17-11-13 in connection with Kachua P.S. Case No. 247/13 u/s 4 and 5 of Immoral Traffic Act.
In the course of hearing the appellant examined 3 witnesses including himself and on the other hand, the respondent examined 2 witnesses in support of their respective cases. After discussing the evidence on record and the various issues, the learned Court below was satisfied to grant the decree of divorce on contest mainly on the ground that the marriage was irretrievably broken down between the parties to the proceedings. However, the allegations in respect of extra Page No.# 3/4 marital affairs were not found to be proved. After allowing the divorce by way of dissolution of their marriage held on 05.03.1981, the Court below ordered the appellant to pay a lump sum amount of Rs. 4, 00,000/-(Rupees Four Lacs) to the respondent No. 1 as permanent and future alimony within a period of 3(three) months from the date of judgment i.e. from 14.08.2015. Being aggrieved by the said judgment and order, the appellant filed the appeal under Section 96 of the CPC challenging only the part of the decree in respect of the permanent alimony.
It is submitted by Mr. Barua that the divorce proceeding was initiated by the appellant on the ground of extra marital affairs which the Court below was aware and passed the divorce decree. Referring Section 25 of the Hindu Marriage Act, 1955 Mr. Barua submits that the allegation was extra marital affairs of the respondent No. 1 with respondent No. 2. The Court below granted the decree of divorce on the allegations made in the plaint to that effect. Thus, it can be held that the Court was satisfied in respect of the issue of extra marital affairs and as such the divorce decree was granted. Under such circumstances, the fact that the respondent No. 1 was leading a life with immoral activities, the same itself is a ground to reject the prayer of permanent alimony if so made by the respondent No. 1. It is also raised by Mr. Barua that in order to invoke jurisdiction under Section 25 of the Hindu Marriage Act, 1955 an application is to be made either by the husband or by the wife, but in the present case in hand, no such application was made and as a result, the appellant was deprived of adducing any evidence in order to dispute the fact that he is able to pay a sum of Rs. 4, 00,000/- (Rupees four lacs) as a permanent alimony. On the other hand, Mr. Das supporting the findings of the Court below submits that the respondent No. 1 was thrown away out of her marital place whereafter, she took shelter in the house of her brother. She has no means of her own to live a life compatible to the status as that of the husband appellant and under circumstances, keeping in view that the husband appellant was a teacher of a primary school, the learned Court below ordered a sum of Rs. 4, 00,000/-(Rupees four lacs) as a permanent and future alimony. The satisfaction of the Court below that the respondent No. 1 is entitled for the said amount as permanent alimony is recorded by the Court below while passing the impugned judgment in this appeal.
I have given due consideration to the submissions of the learned counsel as both the counsel accept the divorce decree as such, I am not entering into the issues and the findings given by the Court below, but from the record it is found that respondent No. 1 did not file any application seeking permanent alimony during the pendency of the divorce proceeding nor thereafter. On perusal of the issues framed by the Court below, it is also apparent that no issue in respect of permanent alimony was framed. The intent of Section 25 of the Hindu Marriage Act, 1955 is a right given to either party to a divorce proceeding to make a claim for permanent alimony and maintenance. An application for Page No.# 4/4 permanent alimony by a party gives the other side to rebut the claim made by the petitioner for permanent alimony. Further, the same puts the parties to the proceeding at guard giving a chance to adduce evidence which is of paramount importance. In the present case in hand, the learned Court below considered the pleadings and the evidence on record and held that after releasing from Kampur Police Station, the appellant refused to allow the respondent No. 1 to stay in her marital home. She was compelled to take shelter in her brother's house and since then she was maintaining somehow after taking shelter in her brothers house. Considering from the materials that the appellant was a teacher by profession and on the other hand, the appellant did not adduce any evidence to show that the respondent No. 1 was employed in any job, as such, the learned Court below ordered to pay a sum of Rs. 4,00,000/- (Rupees four lacs) to the respondent No. 1 as permanent and future alimony.
In my opinion the said finding of the Court below cannot be accepted inasmuch as neither there was an application as required under Section 25 of the Hindu Marriage Act, 1955 nor an issue was framed to that effect, thereby giving a chance to the parties to the suit more specifically, the appellant to adduce evidence thereby showing any evidence in that respect. Accordingly, I am constrained to set aside the finding of the Court below in respect of the amount of permanent alimony of Rs 4,00,000/-(Rupees four lacs) which I accordingly do thereby granting liberty to the respondent No. 1 to file appropriate application under Section 25 of the Hindu Marriage Act, 1955 before the Court below claiming permanent alimony. If the respondent No. 1 files any such petition, the Court below shall give ample scope to the present appellant to file his written objection and also to adduce evidence by both the parties to that effect whereafter, the learned Court below shall decide the petition as per the law. This appeal stands allowed to the limited extent with the order directing the appellant to pay a sum of Rs 4, 00,000/-(Rupees four lacs) as permanent and future alimony to the respondent No. 1 being set aside.
Send back the LCR. No costs.
Interim order, passed if any, stands vacated.
JUDGE Comparing Assistant